EEOC Issues New Guidance on Pregnancy Discrimination and Related Issues

On July 14, 2014, the Equal Employment Opportunity Commission (“EEOC”) released new Enforcement Guidance on Pregnancy Discrimination and Related Issues (“Guidance”). The EEOC begins the Guidance by noting that Congress enacted the Pregnancy Discrimination Act (“PDA”) in 1978 to make clear that discrimination based on pregnancy, childbirth, or related medical conditions is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 (“Title VII”). By enacting the PDA, Congress sought to make clear that “[p]regnant women who are able to work must be permitted to work on the same conditions as other employees; and when they are not able to work for medical reasons, they must be accorded the same rights, leave privileges and other benefits, as other workers who are disabled from working.” In short, “[t]he PDA requires that pregnant employees be treated the same as non-pregnant employees who are similar in their ability or inability to work.”

The Guidance includes information and examples relating to a number of topics, but this blog will focus on two: (1) stereotypes and assumptions and (2) workers with caregiving responsibilities.

1. Stereotypes and Assumptions

The Guidance notes that adverse treatment of pregnant women often arises from stereotypes and assumptions about their job capabilities and commitment to the job. The Guidance uses the example of an employer refusing to hire a pregnant woman “based on an assumption that she will have attendance problems or leave her job after the child is born. Employment decisions based on such stereotypes or assumptions violate Title VII.” Quoting the Supreme Court, the Guidance notes that we are “beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” Employers relying on such stereotypes unconsciously or believing that they are acting in their company’s best interest are still acting unlawfully. Accordingly, supervisors should discuss pregnancy stereotypes and assumptions with managers who have decision-making and/or hiring and firing authority. The company must ensure its supervisors and managers understand the legal impact these popular misconceptions have on employers.

2. Employees with Caregiving Responsibilities

According to the Guidance, “[a]fter an employee’s child is born, an employer might treat the employee less favorably not because of the prior pregnancy, but because of the worker’s caregiving responsibilities.” Although these types of situations fall outside the parameters of the PDA, “discrimination against workers with caregiving responsibilities may be actionable when an employer discriminates based on sex or another characteristic protected by federal law.” The EEOC provides the example of when an employer violates Title VII “by denying job opportunities to women -- but not men -- with young children, or by reassigning a woman recently returned from pregnancy-related medical leave or parental leave to less desirable work based on the assumption that, as a new mother, she will be less committed to her job.” The Guidance continues on to confirm that “[a]n employer also violates Title VII by denying a male caregiver leave to care for an infant but granting such leave to a female caregiver, or by discriminating against a Latina working mother based on stereotypes about working mothers and hostility towards Latinos generally. An employer violates the ADA by treating a worker less favorably based on stereotypical assumptions about the worker’s ability to perform job duties satisfactorily because the worker also cares for a child with a disability.”

As noted in a previous blog (“Family Matters: Helping New Moms Transition Back to Work”), there were 72.2 million women in the civilian work force in 2013, and that number is expected to increase by 5.4% by 2022. Like it or not, employers must learn how to legally work with expecting moms and new moms – the numbers demand it and today’s working parents expect it. In addition, employers must learn to work with dads who want to be involved in the caring of their newly born children. More and more companies are developing “family friendly” policies. Is it time for your company to re-think its policy?